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Rob Shaw: B.C. government appeals ruling over restricted drug use

Premier has expressed frustration province can regulate use of tobacco, alcohol – but not that of hard drugs
Government lawyers say the court “failed to afford an appropriate level of deference to the legislative and executive branches of government in relation to their respective legislative functions."

The B.C. government is appealing a Supreme Court ruling that temporarily struck down its law to restrict drug use in public places — a surprise move that comes after sharp criticism of the ruling by Premier David Eby.

“After reviewing the court’s decision, we have decided to file a notice of appeal seeking to have the court’s order overturned,” Attorney General Niki Sharma said in a statement late Wednesday.

“We are determined to keep doing everything we can to fight the toxic drug crisis and treat addiction as a health matter rather than a criminal one, while recognizing that drugs should not be used in a range of public places frequented by children and families.

“It is our view that the act addresses this.”

The appeal follows Eby’s public frustration that the injunction ties the government’s hands in a way that is inconsistent with its ability to regulate public use of other substances, like smoking.

“The court’s decision is very troubling to me,” Eby said earlier this month.

“It’s profoundly concerning that we can regulate alcohol use, we can regulate tobacco use, but apparently the court has told us that we cannot regulate hard drug use in our province.”

The Eby government passed the Restricting Public Consumption of Illegal Substances Act last year, which altered decriminalization by reinstating fines and the threat of imprisonment for people who consume drugs in public places like bus shelters, beaches, business doorways, parks and beaches.

The law was in response to local mayors, who had complained decriminalization left police and bylaw officers unable to move open drug use away from families and children in public areas. They also cited rising disorder on local streets from the byproducts of open drug use, including crime and public safety concerns.

But BC Supreme Court Chief Justice Christopher Hinkson issued an injunction that forbids government from enacting the law until at least March 31, citing the ongoing public health emergency and the “irreparable harm” to drug users who might be pushed to use alone, where the risk of a fatal overdose is higher.

A larger constitutional challenge against the legislation remains ongoing.

The appeal is somewhat of a surprise because of the tight timeline to March 31.

But the Eby government appears to be fighting a larger point with the move.

Government lawyers said the court “failed to afford an appropriate level of deference to the legislative and executive branches of government in relation to their respective legislative functions,” echoing Eby’s argument that it is up to elected officials, not the courts, to make policy decisions on the regulation of drug use.

The government appeal also reiterates the argument that placing an injunction on a law before cabinet has even drafted regulations is premature. The provincial appeal said Hinkson’s “finding of irreparable harm is not firmly grounded on the evidence that was before him” and “failed to consider that the alleged irreparable harm is avoidable by people who use drugs and, therefore, not irreparable.”

The government also cited “inadmissible opinion evidence in assessing irreparable harm” — an argument Hinkson dismissed in his injunction decision by saying even if he ignored that testimony the facts were backstopped by Chief Coroner Lisa Lapointe’s death review panel report on the toxic overdose crisis.

Lapointe on Wednesday revealed 2,511 people died of toxic drugs in 2023, the highest number ever recorded and up five per cent from the previous year.

She urged the government to do more, including expanding safe supply without a prescription. The government has so far rejected that idea.

Rob Shaw has spent more than 15 years covering B.C. politics, now reporting for CHEK News and writing for Glacier Media. He is the co-author of the national bestselling book A Matter of Confidence, host of the weekly podcast Political Capital, and a regular guest on CBC Radio.

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